123 P. 549 | Cal. Ct. App. | 1912
This is an appeal by plaintiff from a judgment against him and from an order denying his motion for a new trial, in an action for the partition of certain real property.
January 20, 1906, Olive Coulson died, leaving a last will and testament, which was duly admitted to probate, and Allen Small qualified as executor thereof. At the time of her death the three parcels of real property, the subject of this controversy, stood of record in her name, and she left as her surviving spouse Robert Coulson. September 26, 1906, Robert Coulson filed a petition under the provisions of section
September 6, 1906, Robert Coulson made and executed a deed to an undivided one-third of said real property to the plaintiff herein. Subsequently Robert Coulson died, leaving a will, and Frank McMann was appointed executor of his estate. November 8, 1906, this action was commenced against the estate of Olive Coulson and against the executor and devisees under the will of Robert Coulson, the plaintiff alleging the ownership of the property to be exclusively in himself and in the estate of Robert Coulson as tenants in common, and praying for a partition thereof.
All the defendants except the executor of the estate of Olive Coulson, deceased, filed answers admitting the allegations of the complaint. Said executor filed an answer, denying that the plaintiff was the owner or holder of any estate in said real property, and setting up that the estate of Olive Coulson, deceased, was the owner in fee simple and in possession thereof.
During the pendency of the cause Allen Small, the said executor, died, and H. B. Mehrmann, being appointed administrator of the estate of Olive Coulson, deceased, was substituted in his place as defendant.
At the trial the executor of the estate of Olive Coulson, deceased, introduced evidence tending to show that she at the time of her death and prior thereto was the owner in fee simple absolute of all of the real property described in the complaint. Plaintiff, on the other hand, depended entirely on the decree in the proceedings instituted by Robert Coulson above referred to.
The court by its decree adjudged that the real property in question belonged to the said estate of Olive Coulson, deceased, in fee simple, and quieted the title of said estate against the plaintiff and against the codefendants of said executor.
Section
The question in controversy here was recently squarely decided against the position of the appellants in the case ofKing v. Pauly,
On the authority of that case and the cases there cited, the judgment and order appealed from are affirmed.
Lennon, P. J., and Hall, J., concurred.